- Associated Press - Wednesday, July 6, 2016

MADISON, Wis. (AP) - Immigrant advocates criticized the Wisconsin Supreme Court for upholding Wednesday a drunken driver’s 15-year sentence that advocates say unduly took into account the man’s lack of citizenship.

Leopoldo Salas Gayton, a Mexican immigrant who is in the U.S. illegally, pleaded no contest to charges of homicide by intoxicated use of a vehicle and causing death while operating without a license after he killed a woman in 2011 while driving the wrong direction on a Milwaukee freeway while drunk.

At a sentencing hearing in July 2011, Milwaukee County Circuit Judge Dennis Cimpl mentioned Salas Gayton’s immigration status multiple times, saying his status as an “illegal alien” is a minor factor but relates to his character.

In a post-conviction motion, Salas Gayton argued the court improperly considered his immigration status in giving him the maximum sentence, but the circuit court and the 1st District Court of Appeals said that wasn’t the case. The high court affirmed those courts’ decisions Wednesday.

The Wisconsin Supreme Court’s opinion doesn’t clearly answer whether a sentencing court may rely on a defendant’s “illegal immigrant status” as a factor in fashioning a sentence.

It does emphasize the circuit court’s reliance on issues other than Salas Gayton’s immigration status, concluding the harsh sentence was imposed because of his “dangerous conduct operating a vehicle while intoxicated and the tragic consequences of that act.”

“The fact that you’re an illegal alien doesn’t enter into the serious nature of the crime or the need to protect the community,” Cimpl said, according to a transcript included in the opinion. “It goes to character. It’s a minor character flaw very honestly.”

Justice David Prosser wrote for the majority that it’s acceptable for the circuit court to include Salas Gayton’s prior disregard for federal immigration law and his subsequent inability to obtain a driver’s license in its assessment of his character.

Advocates for immigrants in Wisconsin argued Wednesday that the circuit court imposed the maximum sentence for Salas Gayton based in part on his status as a noncitizen.

“We continue to believe that sentencing a defendant based on immigration status or national origin, rather than on any specific actions, is an Equal Protection violation,” Matthew Pinix, a volunteer attorney for the American Civil Liberties Union of Wisconsin, said in a statement.

Justice Ann Walsh Bradley wrote in a concurring opinion that the law on whether sentencing courts can rely on immigration status “is not well-settled,” pointing to some courts that clearly prohibit relying on immigration status to increase a penalty and others that are far less clear.

Bradley wrote the practice may lead sentencing courts down “a slippery slope, potentially raising significant constitutional concerns.”

Salas Gayton’s attorney, Heather Johnson, didn’t respond to a voicemail seeking comment.

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Follow Bryna Godar on Twitter at https://twitter.com/bgodar

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